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910 20 VIRGINIA LAW REGISTER. [ April, 

and circumstances of this case, it was the duty of the court to 
have accepted the provision made for Mrs. Trower by her 
mother, in the codicil to her will, and that the tender by her 
committee of the sum necessary to complete and perfect her 
right to such provision should have been accepted by the court in 
discharge of the amount she was required to pay by the codicil 
for the land involved in this controversy. 

The decree complained of must be reversed and annulled, and 
the cause remanded for further proceedings, not in conflict with 
the views expressed in this opinion. 

Reversed. 



Lester et al. v. Simpkins. 

Jan. 12, 1915. 

[83 S. E. 1062.] 

1. Witnesses (§ 388*) — Impeachment — Inconsistent Statements — 
Foundation. — Where the draftsman of a will, who testified for pro- 
ponents on cross examination, stated that the final draft was writ- 
ten by him at the dictation of the brother-in-law of two of the lega- 
tees, from a typewritten paper which contained provisions different 
from those of the final draft, that the testator had previously told 
witness that the contestant, testator's granddaughter, was to share 
equally with his children, but that witness did not recall stating to 
a witness for contestant that the original draft provided that contest- 
ant should have an equal share, there was sufficient foundation for 
the testimony of contestant's witness that the proponents' witness 
had made such statement. 

[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1233- 
1242, 1246; Dec. Dig. § 388.*] 

2. Wills (§ 50*) — Testamentary Capacity — Hypothetical Question. 
— A hypothetical question to an expert witness for contestant, which, 
after inquiring whether the testator would have sufficient mind and 
memory to understand the nature of the business, the extent of his 
property, and the objects of his bounty, inquired also whether he 
could hold them in his mind long enough to observe their relation 
and to form a rational judgment concerning them, does not require 
a higher degree of capacity than is required by law. 

[Ed. Note.— For other cases, see Wills, Cent. Dig. §§ 96-100; Dec. 
Dig. § 50.*] 

3. Evilence (§ 553*) — Examination of Expert — Hypothetical Ques- 
tion — Omission of Facts. — A hypothetical question to experts for 

♦For other cases see same topic and section NUMBER in Dec. 
Dig. & Am. Dig. Key No. Series & Rep'r Indexes. 



1915. ] LESTER ET AL. V. SIMPKINS. 911 

the proponents of a will on the issue of testator's capacity, which 
did not include the testator's age, the disease from which he was 
suffering, his respiration, pulse, and temperature, and the fact that 
he was rapidly sinking and died the following day, all of which were 
shown by the evidence, was objectionable as not embodying all the 
material facts which the evidence tended to prove. 

[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2309- 
2374; Dec. Dig. § 553.*] 

4. Wills (§ 400*) — Contest — Harmless Error— Admission of Evi- 
dence. — Error in admitting evidence of admissions made by. one of 
several legatees under a will to impeach the will was harmless where 
there was sufficient competent testimony admitted without objection 
to warrant the finding of the jury that the purported will was not 
the true will of the testator. 

[Ed. Note.— For other cases, see Wills, Cent. Dig. §§ 869-873; Dec. 
Dig. § 400.*] 

5. Wills (§ 324*) — Contest— Evidence— Undue Influence.— In pro- 
ceedings to contest a will, evidence held sufficient to take to the 
jury the issue of undue influence. 

[Ed. Note.— For other cases, see Wills, Cent. Dig. §§ 225, 767-770; 
Dec. Dig. § 324.*] 

6. Wills (§ 55*)— Contest— Evidence— Undue Influence— Testa- 
mentary Capacity. — In proceedings to contest a will upon the ground 
of testamentary incapacity, evidence held sufficient to support a 
verdict that the purported will was not the true will of the testator. 

[Ed. Note.— For other cases, see Wills, Cent. Dig. §§ 137-158, 161; 
Dec. Dig. § 55.*] 

Appeal from Circuit Court, Montgomery County. 

Proceedings to contest a will by Roxie Simpkins, by her next 
friend, against William M. Lester, executor, and others. From 
a decree, approving a verdict finding that the purported will 
was not the true last will and testament of the decedent and 
setting aside the will, proponents appeal. Affirmed. 

The instructions requested by the contestant and given by the 
court were as follows : 

"1. The court instructs the jury that the burden is on the 
proponents of the will in this case to establish that the paper 
writing in question, offered as the last will and testament of 
George E. Lester, is the true last will and testament of the same 
George E. Lester, and to do so they must establish to your sat- 
isfaction the following facts: 

"(1) That the paper offered in evidence and the whole paper 

*For other cases see same topic and section NUMBER in Dec. 
Dig. & Am. Dig. Key No. Series & Rep'r Indexes. 



912 20 VIRGINIA LAW REGISTER. [ April, 

was thoroughly understood by the said George E. Lester and in- 
tended by him to be his last will and testament. 

"(2) That at the time of the writing and signing thereof, the 
said George E. Lester was of sound and disposing mind and 
memory. 

"2. The court further instructs the jury that one of the issues 
involved in this contest is whether the decedent, George E. 
Lester, possessed sufficient mental capacity to make a will on the 
16th day of April, 1911, at the time the paper writing offered in 
evidence in this case was executed, and the jury are now told that 
the test of testamentary capacity is that the testator must have 
had sufficient mind and intelligence at the time the paper writing 
was executed to understand : 

"First. The nature of the business in which he was engaged. 

"Second. To recollect the property he was attempting to dis- 
pose of, to know and understand his relation to his blood kin or 
to others who might have claims upon him, and to determine 
the objects of his bounty, and the manner in which he wished to 
dispose of his estate with sense and judgment." 

"And if the jury believe that the decedent did not, at the time 
the alleged will was executed, possess mental capacity to know 
and understand these things, then they must find against the 
will." 

"3. The court instructs the jury that it must appear, by clear 
and convincing evidence, that the testator, at the time of the exe- 
cution of the paper, retained sufficient active mind and memory 
to enable him to collect and arrange in his mind and particulars 
or elements of the business to be transacted, and to hold them 
in his mind a sufficient length of time to perceive, at least their 
obvious relations to each other, and to be able to form some 
rational judgment in relation to them, and if the jury believe 
from the evidence in this case that the said George E. Lester, 
at the time of the execution of the paper in question, was unable 
to do this, then he was incompetent to make a valid will, and 
the jury should find against said will." 

"4. The court instructs the jury that former declarations of 
the testator as to the disposition of his property may be con- 
sidered by the jury to show his feelings and affections towards 
the natural objects of his bounty, and in connection with other 
evidence, if any, may be considered by the jury to show his 
mental condition as reflecting upon testamentary capacity." 

"5. The court further instructs the jury that in determining 
whether or not the paper writing in question is the true last 
will and testament of the decedent, George E. Lester, the jury 
has the right to consider the nature and character of the will, 
and if they find from the evidence that it is contrary to natural 
justice, they should take that fact into consideration, along with 



1915. ] LESTER ET AL. V. SIMPKINS. 913 

the other facts and circumstances in the case and the testimony 
of the witnesses, in determining the question of capacity." 

"6. The jury are further instructed that testamentary inca- 
pacity does not necessarily require that a person shall actually 
be insane. Weakness of intellect, regardless of how it may 
arise, may render the testator incapable of making a valid will, 
provided such weakness really disqualifies him from knowing 
or appreciating the nature, effect, and consequences of the act 
he is engaged in." 

"7. The jury are further instructed that testamentary inca- 
pacity does not necessarily require that a person shall actually 
be insane. Weakness of intellect, regardless of how it may arise, 
may render the testator incapable of making a valid will, pro- 
vided such weakness really disqualifies him from knowing or 
appreciating the nature, effect and consequences of the act he 
is engaged in; and in passing upon the question of the mental 
capacity of the testator to execute the paper writing in question, 
the court tells the jury that creditable testimony of an attending 
physician occupies a high grade, and such evidence is entitled 
to peculiar weight, and especially so in the case of the physician 
attending the patient through his last illness when said paper 
writing was executed." 

"8. The court further instructs the jury that direct proof is 
not necessary to overthrow a will, but any facts and circum- 
stances are sufficient as evidence that will satisfy the jury of the 
incapacity of the testator to make testamentary disposition of 
his property at the time of the execution of his will." 

"9. The court instructs the jury that undue influence is any 
means employed upon and with the testator by which, under the 
circumstances and conditions by which the testator was sur- 
rounded, he could not well resist, and which controlled his vo- 
lition and induced him to do what otherwise would not have 
been done." 

W . B. Kegley, of Wytheville, and R. L. Jordan, of East Rad- 
ford, for appellants. 

Harless & Colhoun, of Christiansburg, and V . M. Sozvder, 
of Floyd, for appellee. 

Cardwell, J. The bill in this cause was filed by Roxie Simp- 
kins, nee Lester, an infant suing by a next friend, for the pur- 
pose of contesting the will of George E. Lester, deceased, which 
had been probated in the circuit court of Montgomery county, 
upon the grounds : ( 1 ) That the deceased did not have testa- 
mentary capacity sufficient to execute said paper purporting to 
be his last will and testament; and (2) that undue and improper 
influence was exercised over him, bv which he "was induced and 



914 20 VIRGINIA LAW REGISTER. [ April, 

persuaded to sign said paper writing because of his impaired 
condition of mind and influence of those around him." To the 
bill the widow of the deceased, his executor and surviving chil- 
dren were made parties defendant, and they filed a joint answer 
thereto. Upon the pleadings an issue devisavit vel non was 
ordered and tried, in the trial of which the defendants to the 
bill occupied the position of plaintiffs, and the complainant, as 
contestant of the will, that of defendant. The trial resulted 
in a verdict by the jury that the paper writing in question was 
not the true last will and testament of the said George E. Les- 
ter, deceased, which verdict was approved by the court, and a 
final decree entered setting aside the will and finally disposing 
of the case, from which decree the widow, the executor, and the 
surviving children of the deceased applied for and obtained this 
appeal. 

It appears that the deceased, George E. Lester, vvas married to 
the wife who survived him, 50 or more years prior to his death ; 
that they had raised six children, five of whom, namely, W. M. 
Lester, Edward Lester, Ollie Roop, Emma Roop, and Laura 
Finley, also survived, and that his other son, "Mont." Lester, 
died about 17 years before his father, leaving surviving him 
but one child, the appellee here, who was, at the death of her 
father, about 2 years of age, and who from that time up to the 
death of her grandfather lived with him and as a member of 
his 'family, enjoying every privilege and performing every duty 
to her grandparents as if she had been their own child, and for 
nine years prior to the death of her grandfather was the only 
one of his descendants remaining at his home to administer to 
his comfort and care for him in his declining years, all of his 
other children having married and moved to their respective 
homes, having children of their own, and were settled in life, 
one of them in the Far West and another in Bland county, Va. 

The deceased had started life in adverse circumstances and 
w thout education, but by industry and the exercise of good busi- 
ness judgment had accumulated an estate valued at his death at 
from $80,000 to $90,000 consisting of real estate, securities, 
live stock, and other personal effects. He had been, up to within 
two or three months prior to his death, in the active manage- 
ment of his affairs, attending to all of his business, and had had 
little or no occasion to consult or to require the professional 
services of attorneys, or the counsel of any one else; but some- 
thing more than a month prior to his death, at the age of 81 
years, he became enfeebled by reason of physical troubles with 
which he had been suffering for some time prior, and about 
April 12, 1911, he became confined to his bed by reason of a deep 
cold, with symptoms of bronchial or catarrhal pneumonia. At 
that time and for several weeks prior appellee was confined to 



1915. ] LESTER ET AL. V. SIMPKINS. 915 

her bed with typhoid fever, and one of the physicians attending 
her made occasional calls upon the grandfather. 

The paper writing purporting to be the will which is here 
contested was executed late in the day of April 16, 1911, and he 
died in the early part of the night of the next day. A short 
while before his death, when he realized that his health was 
failing, he mentioned to Mr. R. I. Roop, an attorney practicing 
in the county of Montgomery and living at Christiansburg, his 
purpose to make a will, discussing the matter in a general way 
with Mr. Roop, but did not at any time disclose to him the 
manner in which he intended to dispose of his estate, except 
that he mentioned one piece of land which he intended to give to 
his son, William 'Lester, a legacy of $500 to a Mrs. Lawrence, 
and stated that he intended to make his children equal, which, 
as Mr. Roop understood him, included his granddaughter, Roxie. 
At the last interview the deceased had with Mr. Roop, which 
was about two weeks prior to the date of his will which is con- 
tested, he requested Mr. Roop to come prepared the next time 
he came out to the country to write his will. The deceased lived 
12 or 15 miles from the town of Christiansburg, and apparently 
did not want Mr. Roop to take the trouble of making a special 
trip for this purpose. Mr. Roop's parental home was in the same 
neighborhood and only a short distance from deceased's home. 
On Saturday, the 15th of April, 1911, Mr. Roop was called to 
the country to write the will of an elderly lady living near his 
old home, and, having in mind the deceased's request, went pre- 
pared to write his will on this same trip, if the deceased should 
desire it. Mr. Roop, it appears, was a brother of two of the de- 
ceased's sons-in-law, and had a general idea of the character and 
extent of his estate, and took the precaution to prepare a skeleton 
form, to be followed in drawing up the final draft of the de- 
ceased's will. From the deceased's expressions to him that he 
(deceased) intended to make his children equal, Mr. Roop as- 
sumed that he included in this class his granddaughter, appellee, 
and in preparing the skeleton form of the will he had included 
her. Upon reaching the home of his parents he learned that 
deceased was seriously ill, and the next day, Sunday, April 16, 
1911, he went over to deceased's home, reaching there shortly 
after midday, and found there some of the members of the 
family, including William Lester, a son of deceased who was 
named as executor of deceased's will, and also Dr. Akers, one 
of the attending physicians, whereupon, and before going in to 
see the deceased, Mr. Roop told Dr. Akers that the deceased 
had requested him to come prepared to write his will, and in- 
quired whether it would be all right for him to go into the room 
of the deceased for that purpose, and Dr. Akers told him that it 
would, as in his (Dr. Akers') opinion it would not unduly excite 



916 20 VIRGINIA LAW REGISTER. [ April, 

the deceased, but that it would be well not to have any more peo- 
ple going into the room than was necessary. Thereupon Mr. 
Roop went into the room, and when testifying in this case says 
that the subject of disposing of his property was first mentioned 
by Mr. Lester, the deceased. At Mr. Roop's instance Dr. Akers 
was requested to remain to act as a witness to the will, and, con- 
senting to do so, remained for some hours, waiting for the final 
draft -of the paper to be finished, and then, finding that it was 
getting late in the afternoon, and not wanting, as he states, to be a 
witness to the will, requested that he be excused and left. When 
Dr. Akers was requested to witness the will he was asked by 
John Roop, a son-in-law of the deceased's condition, to which Dr. 
Akers replied that : 

"Mr. Lester was sinking rapidly and if he made a will he 
would probably have to make it that day." 

Upon going into deceased's room, the matter of the disposi- 
tion of his estate was gone over by Mr. Roop with him. Among 
the matters discussed was the provision for his granddaughter, 
Roxie, and the provision for the widow, notes of the deceased's 
directions being taken down by Mr. Roop and written into the 
skeleton form of a will that he had prepared, and then this 
rough draft was taken by Mr. Roop, along with one J. W. Pepper, 
into another room and read off by Mr. Roop while Mr. Pepper 
wrote out the final draft of a will, which was thereafter executed 
by the deceased as his will, Mr. Roop and Mr. Pepper being the 
witnesses thereto, and thereupon Mr. Roop left the house carry- 
ing with him the will, at the request of deceased, as he states, 
and Mr. Pepper remained at the house during the night. The 
following night the deceased, as already stated, died. 

In the paper writing purporting to be the will of the deceased, 
appellee, his granddaughter, was given only a tract of land of 
150 acres, situated in Floyd county, worth from $1,800 to $2,500 
or $3,000, this devise being to her for life, with remaining to her 
lawful issue, if any, and in default of such issue, with remainder 
to his other children. She was also given $1,000 in money abso- 
lutely, and an equal interest with deceased's children in his 
mineral lands and minerals, with remainder as to this interest 
in deceased's children in the event of the granddaughter di d 
leaving no issue, while ample provision was made for the widow 
and the children of the deceased were given an equal share of 
his estate without qualification of enjoyment or condition. 

The will in question, as observed, was executed within 24 
hours of testator's death and when he was rapidly sinking, im- 
paired in mind, and wasted in body. Appellee contested the will 
upon the theory that its terms and provisions were so incon- 
sistent with the testator's duty to her, and so conflicting with 
his uniform and often expressed intention to make her equal 



1915. ] LESTER ET AL. V. SIMPKINS. 917 

with his other children in the division of his estate, that its exe- 
cution was necessarily the result of the want of sufficient testa- 
mentary capacity to make a will, or to undue influence exer- 
cised over him by others and when he was too feeble in mind 
and body to comprehend or to understand what he was doing. 

Appellee offered the testimony of sundry witnesses as to pre- 
vious declarations made by the testator with respect to the pro- 
vision he intended to make for her in the disposition of his prop- 
erty, and also testimony as to the relation that had continuously 
existed between the testator and herself from her early childhood 
to the day of his death, and while she introduced evidence to sus- 
tain her charge of undue influence, the contest over the will was 
centered mainly around the charge of want of mental capacity 
at the time of its actual execution, evidence being offered in this 
connection, not only as to testator's mental capacity at that time 
from other causes, but to prove that he had suffered for a num- 
ber of years from Bright's disease, the tendency of which was to 
weaken the intellect. 

[1] The finding of the jury is simply that the paper writing 
in question "is not the true last will and. testament of Geo. E. 
Lester, deceased," and, as already stated, the court approved that 
finding and entered its decree thereon, setting aside the alleged 
will. This decree we are asked to review and reverse upon a 
number of grounds, the first being because the court, over the ob- 
jection of appellants, the proponents of the will, permitted a Mrs. 
Hambrick, in giving her testimony for appellee, the contestant, 
to be asked and to answer two certain questions propounded to 
her, the ground of the objection being that no foundation had 
been laid for the admissibility of this evidence. 

It appears that J. W. Pepper, introduced on behalf of the pro- 
ponents of the will, on cross-examination disclosed the following 
facts: That the paper in question, written by witness, was at 
the dictation, not of testator, but of R. I. Roop, a brother-in-law 
of two of the heirs and legatees of testator, and that this dicta- 
tion was from a typewritten paper that had theretofore been pre- 
pared by Mr. Roop; that this typewritten paper from which 
Roop dictated contained provisions and bequests different from 
the provisions of the paper written out by witness Pepper; that 
the testator, prior to the execution of the will, told witness of 
his intention to make Roxie (contestant) equal with his chil- 
dren in the distribution of his estate. Witness Pepper was asked : 

"Did you hear Mr. Roop say that the will would have to be 
rewritten? A. I do not remember his saying that. We re- 
wrote it." The point sought to be emphasized by this cross-ex- 
amination was that a will other than the paper writing offered in 
evidence had been prepared, and clearly the answer of the wit- 
ness tended to prove that fact. Witness does not admit, nor 



918 20 VIRGINIA LAW REGISTER. f April, 

does he deny having read, the contents of a paper formerly pre- 
pared as the testator's will, which he says "we rewrote." Hav- 
ing questioned the witness as to his knowledge of this former 
paper, and its contents, he was asked if he did not say to Mrs. 
Hambrick (the question fixing time and place) that Roxie should 
have an equal share with the other heirs. "A. I don't recall say- 
ing that." Having been put on his guard and questioned as to 
the witness' knowledge of the contents of the. former paper which 
he says "we rewrote," evidence tending to prove that witness on 
a former occasion had made statements in conflict with and con- 
tradictory of his testimony as to the contents of the paper that had 
been rewritten was proper and admissible for the purpose of test- 
ing witness as to his recollection and credibility. Accordingly 
Mrs. Hambrick, a witness for appellee, after referring in her pre- 
ceding answers to a conversation with Mr. Pepper, was asked 
the following questions and gave the following answers : 

"Q. In the course of the conversation, did Mr. Pepper say 
that in the first will Roxie was made equal? A. I don't remem- 
ber that he said that in the same conversation. He said that to 
me in a conversation some time after the death of Mr. Lester, 
but 1 don't know it was at that time." 

Then, after stating where the conversation occurred and who 
was present as well as she could remember, the witness Mrs. 
Hambrick was asked : 

"Q. I understand you to say that Mr. Pepper did say the 
former paper did make Roxie equal ? A. I heard Mr.. Pepper 
use the language that she was equal in the first will." 

[2] Dr. R. F. Williams, a physician of 10 years' practice, in- 
troduced as a witness for contestant, after stating that he at- 
tended the testator in 1906, as he remembered, and found him 
unconscious — in a coma — brought on by Bright's disease, and 
that the effect of bronchial or catarrhal pneumonia setting in 
upon an old man who was suffering with Bright's disease would 
simply be "adding feul to fire" and make the condition of his 
mind much worse, was asked a hypothetical question in which 
testamentary capacity was defined, concluding with — "and 
hold them in his mind a sufficient length of time to observe 
their obvious relations to each other and to be able to form some 
rational judgment in relation to them." 

Objection was made to this question, directed at the latter 
clause thereof just quoted which objection the court overruled, 
and this ruling constitutes appellants' second assignment of er- 
ror. 

There is no merit in the assignment. The rule of testamentary 
capacity was defined, so far as necessary, upon the facts which 
the evidence in the case tended to prove, in Huff v. Welch, 115 
Va. 74, 78 S. E. 573, to be that the testator must have sufficient 



1915. ] LESTER ET AL. V. SIMPKINS. 919 

mind and memory to intelligently understand the nature of the 
business in which he is engaged and to comprehend, generally, 
the nature and extent of the property which constitutes his es- 
tate, and which he intends to dispose of and to recollect the ob- 
jects of his bounty. To add to this definition that the testator 
must "hold them in his mind a sufficient length of time to observe 
their obvious relations to each other and to be able to form some 
rational judgment in relation to them," does not, as is argued 
for appellants here, enlarge the definition given, or require — cer- 
tainly not in this case — "a higher degree of understanding and 
design than the recent expressions of our courts have pre- 
scribed." 

In Tucker v. Sandidge, 85 Va. 554, 8 S. E. 654, the court ap- 
proved the rule that in order to possess testamentary capacity, 
the testator must — "undoubtedly retain a sufficiently active mem- 
ory to collect in his mind, without prompting, particulars or ele- 
ments of the business to be transacted, and to hold them in his 
mind a sufficient length of time to perceive at least their obvious 
relations to each other, and be able to form some rational judg- 
ment in relation to them." 

This rule was sanctioned in Chappell v. Trent, 90 Va. 933, 19 
S. E. 314, when passing on instructions defining testamentary ca- 
pacity. 

[3] Appellants recalled for cross-examination witnesses Drs. 
Akers and Williams, and propounded to each a hypothetical 
question with a view of obtaining an opinion as to the testator's 
testamentary capacity at the time he executed the paper writing 
purporting to be his will, to each of which questions appellee, the 
contestant, objected, which objections the court sustained, and 
these rulings constitute appellants' third and fourth assignments 
of error. 

The question propounded to each of the witnesses omitted the 
following material facts which the evidence tended to prove, 
viz. : The testator's age at time of death ; that he was, at the 
time of executing the alleged will, suffering from the effects of 
Bright's disease and bronchial pneumonia, that his respiration 
was 40, pulse 130, and his temperature three-fifths of a degree 
below normal, and that he was rapidly sinking, and actually died 
the following day. 

It is a well-settled rule that a hypothetical question to an ex- 
pert witness must embody all the material facts which the evi- 
dence tends to prove, affecting the question upon which the ex- 
pert is asked to express an opinion. N. & W. Ry. Co. v. Spears, 
110 Va. 110, 65 S. E. 482; City of Richmond v. Wood, 109 Va. 
75, 63 S. E. 449. 

That the facts in this case pointed out as being omitted from 



920 20 VIRGINIA LAW REGISTER. [ April, 

the hypothetical question propounded to Drs. Akers and Wil- 
liams, respectively, as expert witnesses, were material facts bear- 
ing upon the testamentary capacity of the testator is not and 
could hardly be seriously controverted; therefore the court did 
not err in sustaining the objection to the question. 

[4] The fifth assignment of error is to the ruling of the court 
admitting testimony given by the appellee as to certain admis- 
sions made to her by Mrs. Ollie Roop, one of the children of 
testator and a legatee under his will, the objection to his testi- 
mony being that the admissions of a legatee cannot be given in 
evidence to impeach the will where there are other legatees or 
devisees interested in sustaining it, and as sustaining this conten- 
tion the case of Whitelaw v. Whitelaw, 96 Va. 712, 32 S. E. 458, 
is cited. 

With respect to the case cited we deem it only necessary to 
say that while it undoubtedly lays down a correct rule in princi- 
ple, the facts of that case are so wholly different from the facts 
of this that the doctrine should not be applied here. In the case 
cited, with the exclusion of the evidence as to admissions of Mrs. 
Yager, the contestant's case was without evidence to sustain the 
issue of either testamentary capacity or undue influence, while in 
this case the evidence as to Mrs. Ollie Roop's admissions may 
be entirely excluded and still the evidence introduced in behalf 
of the contestant, without objection, is sufficient to warrant the 
finding of the jury against the will. If it be conceded, therefore, 
that the evidence as to Mrs. Roop's admissions with respect to 
undue influence exercised over testator at the time of the mak- 
ing of his alleged will, and as to his mental capacity to make a 
will at that time, should have been excluded, still the final judg- 
ment of the court sustaining the jury's verdict must be sustained, 
as it appears that the case was otherwise made out and the ille- 
gal evidence did not and could not have affected the result. Nor- 
folk Ry. & L. Co. v. Spratley, 103 Va. 379, 49 S. E. 502. 

The sixth assignment of error calls in question the ruling of 
the court refusing to exclude the following question propounded 
to Dr. Evans, a witness for appellants, on cross-examination : 

"A patient suffering with Bright's disease and while suffering 
with the disease going into a state of unconsciousness shortly 
after making a will, dying the following day, would that man, 
at the time of executing the will, have as clear a mind and as 
good an intellect as he had formerly and before he was afflicted ?" 

Objection was made to the question on the ground, as it would 
seem from the bill of exceptions, that there was no evidence to 
sustain the hypothesis that the testator was suffering from 
Bright's disease, and while so suffering went into a state of un- 
consciousness shortly after making the will in question. The 
ground for the objection to this question is not sustained by the 



1915. ] LESTER ET AL. V. SIMPKINS. 921 

record. Dr. Akers, the attending physician upon testator during 
his last illness, testifying in the case, stated that upon the occa- 
sion of his first visit to testator on March 14th, just one month 
and three days prior to testator's death, he found him suffering 
with symptoms of nephritis, or Bright's disease ; that the most 
aggravating symptom discovered was the catarrhal condition of 
the bladder, due to enlargement of the prostate gland and the 
retention of the urine; that while testator got better of that at- 
tack, on the 12th of April, about four days before his death, he 
began to decline and developed bronchial pneumonia, so that his 
condition on April 16th, the date of his will, was serious, sink- 
ing, and growing worse. Dr. Akers left the house about 4:30 
o'clock p. m., and the will in question was executed by testator 
after he left. As already observed, Dr. Williams stated that he 
was called to see testator in the year 1906 and found him in a 
state of coma brought on by Bright's disease, from which he 
could never recover. J. W. Pepper, one of the attesting wit- 
nesses to the will, and who remained over at the home of the 
testator for the night after the will had been executed, testifying 
for the proponents of the will, was asked and answered the fol- 
lowing questions upon examination in chief : 

"Q. Did Mr. Lester, so far as you recollect, Mr. Pepper, 
make any reference to the will after it had been signed and wit- 
nessed? A. I have a faint recollection of Mr. Lester saying 
something about he was not worth a dollar, or had disposed of 
every dollar he had ; I couldn't say what language he used. 

"Q. That was after the will had been signed and witnessed? 

"A. Yes, sir. 

"Q. Was Mr. Lester irrational or unconscious — I mean other- 
wise than asleep — at any time while you were there, after the 
will was signed? A. Yes, sir. 

"Q. You mean he was irrational? A. He was unconscious. 

"Q. When did he become unconscious? A. I could not say, 
because I don't remember; I know I thought two or three times 
while I was there — I say I don't remember how long I stayed — 
that he was dying." 

It appears that this question put to Dr. Evans, which is com- 
plained of, was a preliminary one leading up to the final ques- 
tions asked witness without objection by the proponents of the 
will, and on cross-examination, for the purpose of eliciting wit- 
ness' opinion of the testamentary capacity of testator under the 
conditions as detailed by the attending physician in charge, and 
the sum and substance of witness' answers to the questions pro- 
pounded to him was that if testator died by reason of Bright's 
disease -and also bronchial pneumonia, either or both, then his 
mind would likely be clouded 24 hours before his death; that 



922 20 Virginia law register. [ April, 

bronchial or catarrhal pneumonia would be "but adding fuel to 
fire." 

The next assignment of error is to the ruling of the court in 
refusing certain instructions offered by the proponents of the 
will — No. 1 A and No. 9 — in amending their instruction No. 7, 
and in giving instructions numbered 1 to 9 asked by the contest- 
ant. 

* [5] It would serve no good purpose to undertake to review the 
instructions as given by the court, and which will be set out with 
the official report of this opinion. Suffice it to say that they, in 
our judgment, fully and fairly submitted the issues of the case 
to the jury upon the facts which the evidence in the case tended 
to prove. The gravamen of the complaint by appellants of the 
instructions is that the question of undue influence, because of 
want of evidence, should have been eliminated from the consid- 
eration of the jury, and as sustaining this contention Huff v. 
Welch, supra, is cited. 

In that case there was, in fact, no evidence of undue influence, 
and a peremptory instruction eliminating that question from the 
consideration of the jury was proper, but that is not the case here. 
Leaving out of view the declarations of Mrs. Ollie Roop, testi- 
fied to by appellee, that the will in question was not the free and 
untrammeled act of the testator, but was the result of undue in- 
fluence exercised over him when he was in a condition which 
rendered him incapable of directing the preparation of his will 
or to understand intelligently the nature of the business in which 
he was engaged, other facts and circumstances which the evi- 
dence in the case tended to prove are as follows : The testator 
had discussed, on at least two occasions, the provisions of his 
proposed will with R. I. Roop, one of the subscribing witnesses 
to the will, and had indicated his intention of making all of his 
children and appellee, his granddaughter, equal in the distribu- 
tion of his estate, designating certain bequests, including $500 to 
a Mrs. Lawrence, who had lived in his home, and pointing out 
certain lands to be devised to his son, William Lester, which di- 
rections were embodied in the paper above adverted to, prepared 
by and in the office of the said Roop at Christiansburg ; that the 
will in question was written by J. W. Pepper, the other subscrib- 
ing witness thereto, at the direction and dictation of the said R. 
I. Roop, and at a time when testator was on his deathbed, wasted 
in body, and his mind poisoned by the effects of Bright's disease 
and bronchial pneumonia, with a pulse, respiration, and tempera- 
ture plainly indicating nearly approaching death, and when those 
engaged in preparing a will for him knew of his critical condi- 
tion; that the draftsman of the previously prepared "skeleton" 
of his will went to the house of testator accompanied by his 
brother, John Roop, a son-in-law of testator, for the purpose of 



1915. ] LESTER ET AL. V. SIMPKINS. 923 

writing a will to be executed by him ; that on arrival at testator's 
home R. I. Roop and his brother John found a second brother, 
Tom Roop, and a son-in-law of testator, Mrs. Ollie Roop, wife 
of John Roop, William Lester, and the now widow of testator; 
that there the previously expressed intention of testator to be- 
queath $500 to Mrs. Lawrence, contained in the skeleton will 
formerly prepared by the attorney, Mr. Roop, was discussed by 
those present, out of the hearing of the testator, and was agreed 
to be left out, notwithstanding the draftsman of the original 
skeleton of the will admits that while taking notes of the wishes 
of the testator as to the disposition of his property, his attention 
was again called to this desire and will of the testator that such 
provision for Mrs. Lawrence should be made. The explanation 
or excuse for omitting this bequest from the final draft of tes- 
tator's will is that William Lester told him, Mr. Roop, that he 
need not bother about this provision, as he, William Lester, had 
told his father that he would see to it. It is also admitted by R. 
I. Roop that the final provisions for the widow of testator were 
not the free and voluntary expressions of his wishes, but the re- 
sult of persuasion on his, Mr. Roop's part after consultation with 
the widow as to what would satisfy her, "and then reluctantly 
yielded to by testator when told that unless he did so provide the 
widow would renounce the will." 

The case of Chappell v. Trent, supra, is quite similar in its 
facts to this case, and there the opinion of the court says : 

"It is undoubtedly true that a testator may adopt and act upon 
the suggestions of a third person ; but this presupposes a testator 
of a sound and disposing mind and memory, and has no appli- 
cation to a case like this, in which the requisite testamentary 
capacity is not proved to exist." 

What might be entirely proper in the case of one possessing a 
sound mind and disposing memory is often such influence that 
an impaired, weakened, and diseased mind could not well resist. 

The facts and circumstances surrounding the execution of the 
alleged will in this case were such that the court would have 
plainly erred had it, by the instructions to the jury, eliminated, 
as appellants sought to have done, the question of undue in- 
fluence from their consideration. 

[6] Coming then to the consideration of the finaJ contention of 
appellants that the trial court should, upon their motion, have 
set aside the verdict of the jury because of want of sufficient 
evidence to sustain it, we deem it only necessary, in addition to 
the references made to the evidence in discussing other questions 
above, to advert to the following additional facts and circum- 
stances which are uncontroverted, tending to sustain the fact 
charged that testator, at the time of the execution of his will in 



924 20 Virginia law register. [ April, 

question, did not have requisite testamentary capacity: Appel- 
lee, the contestant, when but an infant two years old, was re- 
ceived in the home of her grandfather, the testator, as a parting 
charge from her dying father, the eldest son of testator, cared 
for and reared as his own child. He considered and treated her 
as such, and because of her obedience to consideration, and lov- 
ing care of him in his declining years, she possessed his love and 
esteem to the utmost degree. The testator regarded, thought, 
and spoke of her as his own child, and when possessing testa- 
mentary capacity he time and again expressed his affection for 
her and his intention of making her equal with his own children 
in the final disposition of his estate by will, so expressing him- 
self but a few days before taking his bed in his final illness to 
the draftsman of a skeleton will for him, and was so understood 
by this draftsman to the end that granddaughter was made equal 
with all the children of the testator in the skeleton will prepared 
by him, such being testator's uniformly expressed feelings and 
purpose covering a period of many years and up to the very hour 
of the making of the will alleged to have been executed by him. 

Considering these facts along with all the other facts and cir- 
cumstances which the evidence in the case tended to prove, the 
jury, as it seems to us, were well warranted in finding that the 
alleged will of the testator giving to his said grandchild a mere 
pittance of his large . estate, and that, too, to be enjoyed by her, 
in so far as it consisted of land, for life in the event that she 
died without lawful issue, could only be accounted for by the 
fact that at the time of the execution of this paper writing as 
his will the testator did not possess sufficient mental capacity to 
make and publish a will disposing of his large estate with sense 
and judgment and in accordance with his wishes. Not only so, 
but the testimony given by Dr. Akers, the attending physician, 
with an actual practice of 30 years, and whose standing as a 
physician and whose integrity is not questioned, as well as other 
expert testimony in the case, was quite clear and positive that 
the testator did not possess sufficient mental capacity to execute 
the alleged will. 

There is no error in the decree of the circuit court complained 
of, and it is therefore affirmed. 

Affirmed.